Snyder v. Castor , 4 Yeates 442 ( 1807 )

By the Court.

The objection urged against the present application is that it comes too late, and that there has been an acquiescence in the acts of the sheriff, so as to take the case out *of the late law. But we are far from being satisfied, that the fieri facias was returned in July term last; and unless this was the case, there is no ground for the objection. At all events, the sitting judge could not have set aside the levy. It is true, he might have stayed the proceedings, and granted rules preparatory to the final hearing. This however would not expedite the business, but would leave the parties as we now find them.

Cited in 2 Binn. 7.

Giving the bond could be considered in no other light than as a prudential step under existing circumstances. The administrator could not without a breach of his duty, have assented to an illegal act tending to prejudice those for whom he was intrusted. But we have no evidence of any such agreement.

Under the old act of 1705, this court would not have suffered the levy of a parcel of a distinct tract of land, by the sheriff; because it would tend do defeat the provisions of that law, and would be injurious as well to other creditors as the debtor. The present case is clearly within the words and spirit of the law of 21st March 1806; and consequently the levy, inquisition and venditioni exfonas must be set aside and quashed.